Tuesday, August 23, 2016

Employer's Religious Rights Win Out Over Transgendering Employee's RIghts


Anthony Stephens began working as a Funeral director for R.G. & G.R. Harris Funeral Homes in 2007. Six years later Stephens gave the funeral home a letter stating:

"Dear Friends and Co-Workers:

"What I must tell you is very difficult for me and is taking all the courage I can muster. I am writing this both to inform you of a significant change in my life and to ask for your patience, understanding, and support, which I would treasure greatly. . ..I have a gender identity disorder that I have struggled with my entire life. I have managed to hide it very well all these years . . ..

"I have been in therapy for nearly four years now and have been diagnosed as a transsexual. I have decided to become the person that my mind already is. Toward that end, I intend to have sex reassignment surgery. The first step I must take is to live and work full-time as a woman for one year. At the end of my vacation on August 26, 2013, I will return to work as my true self, Amiee Australia Stephens, in appropriate business attire. . .. It is my wish that I can continue my work at R.G. & G. R. Harris Funeral Homes doing what I have always done, which is my best!"
There was no question that Stephens intended to abide by the funeral home’s dress code for female funeral directors. After receiving the letter the business owner, Thomas Rost, decided to fire Stephens. There was no dispute that Rost based his decision on sincerely held religious beliefs.

The legal issue was whether the federal Religious Freedom Restoration Act (“RFRA”) trumped Stephens’ rights under Title VII, the federal anti-discrimination in employment law. Title VII prohibits employers from discharging or otherwise discriminating against any individual with respect to compensation, terms, conditions, or privileges of employment “because of such individual’s race, color, religion, sex, or national origin.” The U.S. Supreme Court has recognized that sex discrimination may manifest itself in stereotypical notions as to how women and men should dress and present themselves in the workplace. It’s referred to as sex-stereotyping. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). The goal of the sex-stereotyping theory of sex discrimination is that “gender” “be irrelevant” with respect to the terms and conditions of employment and to employment decisions. Id.

The funeral home based its RFRA defense on the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014). The majority in Hobby Lobby held:

“[L]aws [that are] ‘neutral’ toward religion,” Congress found, “may burden religious exercise as surely as laws intended to interfere with religious exercise.” 42 U.S.C. § 2000bb(a)(2); see also § 2000bb(a)(4). In order to ensure broad protection for religious liberty, RFRA provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” § 2000bb–1(a). If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” § 2000bb–1(b)." Id. at 2761.

The district court applied the following analysis: (1) whether the law at issue substantially burdens the Funeral Home’s exercise of religion (Hobby Lobby, 134 S.Ct. at 2775); (2) if so, whether the Government can meet its burden of showing that application of the burden “to the person is (a) in furtherance of a compelling governmental interest; and (b) the least restrictive means of furthering that compelling governmental interest. Hobby Lobby, 134 S.Ct. at 2761.

Finding that Title VII substantially burdened the funeral home’s exercise of religion The court next assumed that the EEOC met its first burden of showing the anti-discrimination provisions in Title VII furthered a compelling governmental interest and, therefore, proceeded to the least restrictive means burden analysis. The court decided that the EEOC failed to satisfy this burden. The court’s analysis seems to hinge on a question it asked: “[C]ouldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?” The funeral home’s owner, Mr. Rost, had testified in deposition that female funeral director’s could acceptably wear a business pants suit. Stephens agreed. To the court the issue was whether Stephens had a right to comply with the funeral home’s dress code (skirt and matching jacket) and decided she did not if she could be accommodated by being allowed to wear a business pants suit -- less restrictive means of enforcing Title VII.

Consequently, the court held that the funeral home was entitled to an RFRA exemption from Title VII. The EEOC has thirty days to appeal the decision to the Sixth Circuit Court of Appeals. Given its straightforward and undisputed facts, this is an excellent case for the Supreme Court to revisit its decision in Hobby Lobby in order to provide guidance on what is a re-occurring issue.

The case is EEOC v. RG & GR Harris Funeral Home, Inc. (E.D. Mich., Aug. 19, 2016).